I'd like to thank Rich and Amy, again, for agreeing to come on and discuss their work with all of us. I'd like to start the discussion with the ABA's standing committee itself. Why does it have the role it does, and how does it decide which rating to give to a given judicial nominee?
The authors agree that the ABA plays a vital role in the process, but I would argue that its vital role really isn't captured in this paper. The models are couched as attempts to explain the ABA's ratings, but I think they are really attempts to ascertain what makes a judicial nominee qualified for the job per se, as it cannot be said that the models adequately capture the decision making of the ABA's committee. Indeed, the measures in the models here are composed of information that is not exclusive to the ABA and would be easy for Senators or the President to obtain on their own: judicial experience, clerkships, law professorships. What the ABA brings that is valuable and that makes it relevant to Senators trying to make a decision on a given nominee is its extensive research on the nominee that includes interviews of colleagues and bosses and lawyers and judges who have personal knowledge of and information about the candidate. It is quite likely that the information obtained through these interviews is highly related to the ABA’s rating, as is other information the ABA considers, including all published writings of the candidate; i.e., opinions and briefs and law review articles.
Of course, the interviews are confidential and I do not know whether the reports the committee issues are available to anyone not serving on the committee, and so this sort of information would be extremely difficult to include in an analysis of the Committee ratings. But I think it leaves the reader wondering how any model of this particular decision-making process could be fully specified and how much credence we can place on the findings reported here regarding the ABA's apparent preference for liberal potential jurists, given limitations on specification. In addition, I wonder whether the results are time-bound, given that liberals used to claim that conservative jurists were favored. What changed in the ABA's process between then and now? I think the authors are onto something when they discuss the criteria the ABA says it uses in these evaluations, which includes judicial temperament. (Indeed, reading the ABA's Senate Judiciary Committee testimony in the case of Michael Wallace (who received a Not Qualified rating from the ABA) raises all kinds of questions about how that criterion operates in practice. And, I would argue that one measure in the model -- service as a Congressional staffer -- may actually tap into that criterion (since open-mindedness is one component of judicial temperament).) But, is that criterion new?
I suppose that's enough for now. Thoughts?